Affirmative Consent:

‘Your guess is as good as mine’

Years ago students at Antioch College in Ohio came up with a novel approach to addressing date rape. The idea was to require students to express their “clear verbal consent” before moving to a new level of sexual intimacy. The affirmative consent policy inspired a now-famous Saturday Night Live parody. Student enrollments began to plummet and Antioch College was eventually forced to shutter its doors.

Now, a new generation of activists is clamoring for affirmative consent, sometimes referred to as “yes means yes.” In 2014, California Gov. Jerry Brown approved a new law defining consent to sex as “affirmative, conscious, and voluntary agreement” that “must be ongoing tAffirmative Consenthroughout a sexual activity.” In 2015, Gov. Andrew Cuomo approved a similar law for New York students.

Affirmative consent policies are creating widespread confusion for high school and college students. Even proponents admit the policy is likely to create “a haze of fear and confusion over what counts as consent.” And 85% of persons oppose government consent-to-sex mandates, according to a national opinion poll.

Affirmative consent is harmful for seven reasons:

  1. Removes the presumption of innocence. When California assemblywoman Bonnie Lowenthal was asked how a wrongfully accused man is supposed to prove the accuser gave her consent, she admitted, “Your guess is as good as mine.”
  2. Makes it easy for an accuser to retroactively revoke consent. The vague requirement that consent be “ongoing throughout a sexual activity” allows a woman to later allege she consented to one specific type of sexual activity, but not to another.
  3. Turns 99% of sexual activities into rape. Affirmative consent policies typically use broad definitions of “sexual activity,” even including hand-holding or kissing. Naomi Schaefer Riley explains, “When everyone’s a rapist, no one is.” This trivializes the heinous nature of rape.
  4. Converts romantic sex into a “Mother, may I?” exercise. The requirement that consent be “on-going” removes the spontaneity and enjoyment from sexual activities.
  5. Shortchanges rape victims. Affirmative consent policies remove the element of force from the definition of rape, and reduce rape to a legalistic question of whether or not consent was provided.
  6. Lulls women into a false sense of security. As Kathleen Bogle explains, “Rapists do not care whether the victim is consenting or not.”
  7. Infantilizes women: The assumption behind affirmative consent is the archaic belief that women are incapable of saying ‘No.’

On August 4, 2015, judge Carol McCoy overturned a decision of the University of Tennessee at Chattanooga to expel a student on allegations of sexual assault. McCoy ruled the university’s affirmative consent standard “improperly shifted the burden of proof” because the “ability of an accused to prove the complaining party’s consent strains credulity and is illusory.”

In April 2016, the Massachusetts District Court ruled against the Brandeis University affirmative consent policy, saying “it is absurd to suggest that it makes no difference whatsoever whether the other party is a total stranger or a long-term partner in an apparently happy relationship.”

On March 22, 2016 the National Association of Criminal Defense Lawyers issued a position paper on a proposed rewrite of sexual assault laws that would make affirmative consent a key part of the definition of the crime. The NACDL report notes that affirmative consent would unconstitutionally “shift the burden of proof to the accused.” Affirmative consent would also “use the bludgeon of criminal sanctions to impose the new and yet untested concept of ‘affirmative consent’ upon society.”

On May 17, 2016 members of the American Law Institute voted down the affirmative consent standard being considered for the group’s proposed Model Penal Code for Sexual Assault. Instead, the ALI membership approved this definition: “’Consent’ means a person’s willingness to engage in a specific act of sexual penetration or sexual contact. Consent may be expressed or it may be inferred from behavior, including words and conduct—both action and inaction—in the context of all the circumstances.”

In 2016, 11 states considered affirmative consent bills. Only one state, Connecticut, enacted the bill. In the other 10 states, the bill was not voted upon and did not pass:

State Bill Number(s)  Result
1 Connecticut HB 5376 Passed
2 Hawaii HB 597/SB 3119 Never voted on
3 Iowa HSB 637/SF 2195 Never voted on
4 Maryland HB 1142 Never voted on
5 Michigan HB 4903/SB 512 Never voted on
6 Minnesota HF3100/SF3088 Never voted on
7 Missouri SB 626 Never voted on
8 New Jersey A2271 Never voted on
9 North Carolina HB 474 Never voted on
10 Pennsylvania SB 1005 Never voted on
11 West Virginia HB 2690 Never voted on

 

LAW PROFESSOR COMMENTARIES

A number of law professors have expressed concerns with the affirmative consent standard, including the policy’s unworkability, lack of effectiveness, curtailment of due process rights, wrongful convictions, constitutional problems, and broader social effects:

  • John F. Banzhaf, professor at George Washington University Law School, explains the affirmative consent standard “is not logical — nobody really works that way.”
  • University of Kansas law professor Corey Yung worries that affirmative consent policies are ineffective “because the gains of the rule are likely to be minimal, the net effect for rape victims and justice will likely be negative.”
  • Nadine Strossen, faculty member at the New York Law School and former president of the ACLU, notes: “These affirmative-consent rules violate rights of due process and privacy…Unless the guy can prove that his sexual partner affirmatively consented to every single contact, he is presumed guilty of sexual misconduct.”
  • Tamara Rice Lave of the University of Miami School of Law reinforces concerns about shifting the burden of proof to the defendant: “But with affirmative consent, the accused must put on evidence.”
  • Alan Dershowitz, Emeritus Professor at Harvard Law School, explains that “Requiring the accused to demonstrate that affirmative consent was obtained, which is often difficult to prove,” would result in an “unacceptable” number of wrongful convictions.
  • Baruch College law professor Jay Weiser highlights the constitutional problems: “The new affirmative-consent rules run afoul of many constitutional principles” because they are “vague and overbroad” and “amount to government-compelled speech.”
  • Harvard Law School faculty member Janet Halley reflects on the broader social implications of affirmative consent policies that would “foster a new randomly applied moral order that will often be intensely repressive and sex-negative…They will install traditional social norms of male responsibility and female helplessness.”
  • Harvard professors Jacob Gersen and Jeannie Suk argue that ever-expanding definitions of affirmative consent have led to the current untenable situation in which “conduct classified as illegal by the sex bureaucracy…plausibly covers almost all sex students are having today.”
  • San Diego law professor Kevin Cole writes that the American Law Institute draft’s overly broad affirmative consent provisions would determine “the legality of every sex act between individuals who are not in an intimate, cohabiting relationship” and “will pose dangers to [women] whose protests are genuine.”
  • University of Pennsylvania law professor Paul Robinson argues, “The most promising path to changing the culture of sexual consent on college campuses is to adopt and regularly reaffirm ‘yes means yes’ as the rule of proper conduct, but to reject it as the principle of adjudication.”

EDITORIALS

Numerous commentators have criticized affirmative consent: